delivered on 20 May 2021 (1)

Case C‑724/19

Spetsializirana prokuratura

(Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria))

(Preliminary-ruling proceedings – Judicial cooperation in criminal matters – European investigation order – Directive 2014/41/EU – Article 2(c) – Issuing authority – Article 6(2) – Conditions of issue – Public prosecutor acting as issuing judicial authority – Power to issue a European investigation order reserved to a judge in similar national proceedings)

Is a public prosecutor’s office of a Member State competent to issue a European investigation order in a criminal matter (‘EIO’), requesting traffic and location data relating to electronic communications, when, in accordance with the national law of the issuing State, only a judge or a court is entitled to authorise the gathering of such evidence?

That, in essence, is the uncertainty raised in this reference for a preliminary ruling. In resolving that uncertainty, the Court will have the opportunity to develop its case-law on the concept of an EIO ‘issuing authority’ for the purposes of Directive 2014/41/EU, (2) in relation to a public prosecutor’s office.

According to recital 30, ‘possibilities to cooperate under this Directive on the interception of telecommunications should not be limited to the content of the telecommunications, but could also cover collection of traffic and location data associated with such telecommunications, allowing competent authorities to issue an EIO for the purpose of obtaining less intrusive data on telecommunications. An EIO issued to obtain historical traffic and location data related to telecommunications should be dealt with under the general regime related to the execution of the EIO and may be considered, depending on the national law of the executing State, as a coercive investigative measure’.

According to recital 32, ‘in an EIO containing the request for interception of telecommunications the issuing authority should provide the executing authority with sufficient information, such as details of the criminal conduct under investigation, in order to allow the executing authority to assess whether that investigative measure, would be authorised in a similar domestic case’.

Article 1 (‘The European Investigation Order and obligation to execute it’) provides:

‘1. A European Investigation Order (EIO) is a judicial decision which has been issued or validated by a judicial authority of a Member State (“the issuing State”) to have one or several specific investigative measure(s) carried out in another Member State (“the executing State”) to obtain evidence in accordance with this Directive.

The EIO may also be issued for obtaining evidence that is already in the possession of the competent authorities of the executing State.

Article 2 (‘Definitions’) stipulates:

‘For the purposes of this Directive the following definitions apply:

…

(c) “issuing authority” means:

(i) a judge, a court, an investigating judge or a public prosecutor competent in the case concerned; or

(ii) any other competent authority as defined by the issuing State which, in the specific case, is acting in its capacity as an investigating authority in criminal proceedings with competence to order the gathering of evidence in accordance with national law. In addition, before it is transmitted to the executing authority the EIO shall be validated, after examination of its conformity with the conditions for issuing an EIO under this Directive, in particular the conditions set out in Article 6.1, by a judge, court, investigating judge or a public prosecutor in the issuing State. Where the EIO has been validated by a judicial authority, that authority may also be regarded as an issuing authority for the purposes of transmission of the EIO;

…’

Article 6 (‘Conditions for issuing and transmitting an EIO’) reads:

‘1. The issuing authority may only issue an EIO where the following conditions have been met:

(a) the issuing of the EIO is necessary and proportionate for the purpose of the proceedings referred to in Article 4 taking into account the rights of the suspected or accused person; and

(b) the investigative measure(s) indicated in the EIO could have been ordered under the same conditions in a similar domestic case.

In accordance with Article 9 (‘Recognition and execution’):

‘1. The executing authority shall recognise an EIO, transmitted in accordance with this Directive, without any further formality being required, and ensure its execution in the same way and under the same modalities as if the investigative measure concerned had been ordered by an authority of the executing State, unless that authority decides to invoke one of the grounds for non-recognition or non-execution or one of the grounds for postponement provided for in this Directive.

…’

Article 5(1) provides that the competent EIO issuing authority is the public prosecutor in the pre-trial stage of criminal proceedings or the competent court in the trial proper.

Article 159a, headed ‘Provision of data by companies providing publicly available electronic communication networks and/or services’, provides:

‘(1) At the request of the court in the trial stage or on the basis of a reasoned order of a judge of the respective court of first instance, made in the pre-trial stage at the request of the supervising public prosecutor, companies providing publicly available electronic communication networks and/or services shall make available the data that are generated in the course of their activities and are required for the purposes of:

5. identifying the user’s end electronic communication device or that acting as the user’s end device;

(2) The data under paragraph 1 shall be collected where required for the purposes of investigating violent intentional crimes.

(3) The request of the supervising public prosecutor referred to in paragraph 1 shall state its reasons and must contain:

5. the investigating authority to which the data are to be provided.

(4) In the order referred to in paragraph 1, the court shall indicate:

(5) The period of time for which the provision of the data referred to in paragraph 1 is requested and authorised shall not exceed six months.

…’

II. Facts, national proceedings and questions referred for a preliminary ruling

Following the commencement of criminal proceedings in Bulgaria against HP for the financing of terrorist activities, the public prosecutor’s office issued four EIOs, with identical content, for the collection of traffic and location data relating to electronic communications. (3)

The four EIOs were issued by the Bulgarian public prosecutor’s office without the intervention of, or validation by, a judge or a court and were transmitted to the relevant authorities in Belgium, Germany, Austria and Sweden.

The public prosecutor’s offices of the Member States to which the EIOs were addressed executed the EIOs without authorisation or validation by a judge or a court, except in the case of the Belgian public prosecutor’s office.

Based on the evidence gathered, including the information supplied in response to the EIOs, HP and five other persons were charged with financing terrorist acts and being part of a criminal group for the purpose of financing such acts.

The Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria), which has to examine the evidence gathered in accordance with the EIOs, questions whether that evidence is lawful since, under national law, that evidence could only have been obtained in Bulgaria following judicial authorisation.

Against that background, that court has referred the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is a national law … according to which, during the pre-trial stage of the criminal proceedings, the authority competent to issue [an EIO] for the provision of traffic and location data related to telecommunications is a public prosecutor, consistent with Article 2(c)(i) of Directive 2014/41 and the principle of equivalence, provided that in an identical domestic case the competent authority is a judge?

(2) Does recognition of that [EIO] by the competent authority of the executing State (public prosecutor or an investigating judge) replace the court order required under the law of the issuing State?’

III. Procedure before the Court

The reference for a preliminary ruling was received at the Registry of the Court on 1 October 2019.

Written observations were lodged by HP, the German and Hungarian Governments, and the Commission.

The Court ruled that, instead of a hearing, the parties and those participating in the proceedings would be heard in connection with the possible effects on the dispute of the judgments of 8 December 2020 (4) and 2 March 2021. (5)

At the direction of the Court, this Opinion will deal solely with the first question.

HP submits that Article 5(1)(1) of the ZEZR is not compatible with Article 2(c) of Directive 2014/41, because the latter does not permit the competence of the courts to be excluded when it comes to ordering acts like those referred to in the order for reference. HP points out, moreover, that, under Bulgarian law, those acts must be adopted by the competent court. The manner in which the information on traffic data was obtained in the main proceedings is, therefore, unlawful under Bulgarian law.

The German Government contends that the reply to the question referred is found not in Article 2(c) of Directive 2014/41 but in Article 6(1)(b) of that directive. Regardless of the fact that Article 2(c) permits the separation of competence to order a specific measure from competence to issue an EIO, the fact is that Article 6(1)(b) precludes a request for a cross-border investigative measure from being made subject to conditions that are less strict than those applicable, pursuant to national law, to a similar domestic procedure.